Politics & Prejudices: Gearing up for the last battle

Nov 11, 2015 at 1:00 am

For Dana Nessel, Friday morning, June 26 must have seemed surreal. Thanks in part to her work, the nation was on the verge of a major constitutional change.

Four years earlier, two worried nurses had come to her law office. Though their names are famous now, they weren't then. They lived in non-trendy Hazel Park.

They were in a committed, same-sex relationship. They loved children. They were that rarest of foster parents — people who specialized in taking special needs infants no one wanted.

Three of them were part of their household. Jayne Rowse and April DeBoer wanted to jointly adopt all of them.

Michigan said absolutely not. The state agreed they were amazing foster parents. But only married couples and individuals were allowed to adopt children. Two of the children had been legally adopted by one nurse; one by the other.

They had been raised as siblings. But if something were to happen to one woman, the other would have no rights whatsoever to a child who from birth had been hers.

Nessel knew how unfair this was. Anyone not blinded by religious fanaticism could see it. But she didn't know if she was the right attorney for the case; she'd been a tough-as-steel assistant Wayne County prosecutor specializing in going after child abusers before going into private practice.

But to her shock and disgust, those who you would think would be eager to help weren't. "They said it wasn't time yet, that we would lose, and it would set things back for same-sex equality for years." Nessel wasn't impressed.

"How do you tell a grieving mother who has been told she can't see her children forever that 'it's not your time'?" she told me. Screw them, she thought. She'd take the case, even if no money was available from the usual liberal groups.

"I thought, I might not be the best person to do it, but somebody is better than nobody." There was indeed no money; the nurses certainly didn't have any. Nessel herself had twin 8-year-old sons then she was raising on her own. But she knew it was right.

In the end, she turned out to have indeed been the best person to do it. She filed a lawsuit in federal court, aided by a stellar legal team that included attorneys Carole Stanyar, Kenneth Mogill, and their Yoda, Bob Sedler, a constitutional scholar who is a distinguished law professor at Wayne State University. The case was assigned to U.S. District Judge Bernard Friedman, who suggested she broaden it to challenge Michigan's state ban on same-sex marriage.

What happened next could fill a book, but in the short version, Nessel and Co. humiliated Bill Schuette, Michigan's grandstanding attorney general, and won triumphantly.

Her case was bundled with others, the process played out, and then on the morning of June 26, the United States Supreme Court ruled that same-sex marriage was a constitutional right all states were bound to recognize.

Her victory was complete, or so she thought. Soon, Michigan would have to reimburse her team for their legal expenses. Rowse and DeBoer would soon marry. Nessel herself would marry her partner, Alanna Maguire.

Life looked amazingly good. That is, until she got back to her office and the phone started ringing. The callers were devastated and demoralized gay people.

Yes, they could now marry. But incredibly, in Michigan, same-sex married couples had almost no other protections. You can still be fired just for being gay. Insurance companies were alleging they didn't have to provide the benefits to same-sex couples they did to heterosexual couples. "Some people said it was worse for them than it was before," she said.

Nessel wasn't eager for another major challenge so soon. But once again, she feels she was given the brush-off by groups like the ACLU and Equality Michigan. Some told her that the solution was to have the Michigan Legislature broaden the state's 40-year-old Elliott-Larsen Civil Rights Act.

That, she knew, would never happen. The legislature is controlled by religious right and tea party fanatics who have made it clear they will never do that.

"They've tried for 12 years. They've introduced 12 bills, and never had a vote. We've never even had a hearing in the state Senate." Last year, there was talk of maybe broadening the civil rights act in return for passing an Orwellian "Religious Freedom Restoration Act," which would allow gay-haters to go right on discriminating. But that never went anywhere, and the present leaders are even more hostile to gay rights in any form.

Clearly, the only solution was to amend the state constitution. Doing that, she knew, would take millions, first to get it on the ballot, then to educate voters and ward off the lies.

But then, something amazing happened.

Richard McLellan, a powerful conservative Republican attorney, a long-time behind-the-scenes fixer for people like John Engler, joined forces with her. Together, they launched a group called Fair Michigan, dedicated to making this happen.

While some were absolutely stunned, those in the know were less so. For the last few years, there has been a quietly growing split among Republicans over gay rights.

The religious fanatics and gay-hating legislators in bad suits have gotten most of the attention. But those who run businesses and function in the real world see things differently.

They see progressive new economy businesses that are reluctant to come to or expand in Michigan. Business executives and savvy GOP operatives see new Michigan college graduates getting out, starting their careers in states not run by glazed-eyed fanatics more interested in bashing gays than fixing roads.

And they see that among young voters, there is overwhelming acceptance of LGBT lifestyles. Men like McLellan know that the longer the GOP continues to be seen as the party of sexual intolerance, the more votes it will lose.

Getting this on the ballot is still not a slam dunk. Fair Michigan is opting for the simplest and cleanest approach. They will merely propose amending Article I, Section 2 of the state constitution, which now says "No person shall be denied the equal protection of the laws ... or be discriminated against because of religion, race, color, or national origin."

To that last sentence they would add "gender, gender identity, sex, or sexual orientation."

Dana Nessel noted "I hadn't realized that the way it is written now, it doesn't even guarantee equal rights for women."

But does it have a chance with voters? Last month, the respected Chicago firm the Glengariff Group did a major survey of likely Michigan voters. The result: Voters supported the proposed equality amendment by 68.4 percent to 19.3 percent!

Yet even that wasn't enough to get Equality Michigan on board. Jim Murray, the leader of the group that calls itself the state's major gay rights organization, said he was "uncomfortable with having a referendum."

Murray added "I think this has to be a legislative solution," even though it is clear to anyone that this is impossible.

Some are wondering if the bureaucrats at Equality are really worried that success might put them out of business.

When I asked Nessel about this, she told me she didn't much care. They told her she couldn't win on adoption and marriage, and wouldn't help her. She did it anyway.

My impression is that she might hold them in contempt if she had time to think about them, but she doesn't.

She's too busy figuring out how to win.